At the moment, the two major parties in the U.S. are polarized on the role of the federal government. Democrats, as has generally been the case since the civil-rights era, favor federal activism to establish certain rights and living conditions nationally. Republicans have more and more uniformly adopted the states’-rights posture the GOP was initially founded to oppose in the mid-19th century.
This has been the backdrop to many of the great political and legal battles of 2021. Democrats, who have a governing trifecta in Washington, are struggling to impose or reimpose national standards in areas ranging from voting rights to health care to income maintenance. Meanwhile, Republicans are using every tool available to protect the independence of state governments they control, as the GOP-dominated federal courts work to dismantle rights guaranteed to all Americans. This dynamic will likely become even more obvious in 2022, as the U.S. Supreme Court is expected to strike down or significantly curtail the right to an abortion, producing wildly disparate state policies on reproductive rights.
It really is a historic turning point, Ron Brownstein argues in The Atlantic:
Since the 1960s, Congress and federal courts have acted mostly to strengthen the floor of basic civil rights available to citizens in all 50 states, a pattern visible on issues from the dismantling of Jim Crow racial segregation to the right to abortion to the authorization of same-sex marriage. But now, offensives by red-state governments and GOP-appointed federal judges are poised to retrench those common standards across an array of issues. The result through the 2020s could be a dramatic erosion of common national rights and a widening gulf—a “great divergence”—between the liberties of Americans in blue states and those in red states.
But it would be a mistake to assume that this is the “new normal” in American politics, with Democrats perpetually attempting to extend their policies to those living in red states and Republicans focusing on states under their control and implicitly accepting that they have little control over what goes on elsewhere. If Republicans secure their own governing trifecta – which could happen as soon as 2024 – they will be tempted to abandon their passion for states’ rights and impose the policies they favor nationally, a development that Brownstein calls the “darkest scenario for Democrats.” Here are some types of federal laws and regulations that Republicans could very conceivably enact in that scenario, which would curb rights even in blue states.
Fetal personhood protections that restrict abortion nationwide
Overturning Roe v. Wade and returning abortion policy to the states has long been a primary goal for an anti-abortion movement that has formed a strong partnership with the Republican Party. But the ultimate objective — enshrined in the GOP platform since 1980 — is a federally established “fetal personhood” right that bans any state from allowing abortion. And there are abundant signs that this perspective could become dominant in conservative circles once the great white whale of Roe has been harpooned. One important indicator is the recent omission of rape and incest exceptions from many state abortion bans (including the Texas and Mississippi laws now before the Supreme Court). These exceptions were once considered politically obligatory, and forcing pregnancies caused by rape or incest to be carried to term remains very unpopular.
Then prospect of raising fetal personhood to a federal constitutional right is still remote, given the extreme difficulty of enacting even popular constitutional amendments and the ground even a conservative Supreme Court would have to cover before considering it. But a federal statute imposing personhood rights on the states is entirely feasible if there is a Republican trifecta in Washington that first disposes of the obstacle imposed by the Senate filibuster (see discussion below).
“Election integrity” laws that keep states from expanding voting rights
Beginning in 2013, after a conservative Supreme Court majority gutted the key enforcement provision of the Voting Rights Act of 1965, Republicans rapidly abandoned the commitment to federal voting rights that most of them (outside the Deep South) had embraced all the way back to the Eisenhower administration. This became most evident in 2021, when only one Senate Republican — Lisa Murkowski — was willing to support the John Lewis Voting Rights Advancement Act, aimed at restoring the voting-rights provisions that Republicans once supported all but universally (e.g., in 2006, when Senate Republicans all voted for, and George W. Bush then signed, a VRA extension).
But what appears to be gaining steam, thanks to encouragement from Donald Trump and some conservative ideologues, is the idea that America needs federal legislation to shore up “election integrity.” This could include banning state laws expanding access to the ballot via liberalized early voting (particularly by mail), ex-felon re-enfranchisement, and simplified or automatic voter registration. Similarly, Republicans are showing signs of favoring standardized election-administration rules to prevent a repeat of what MAGA folk regard as the theft of the 2020 presidential election by Democratic state and local election officials. It’s no accident that two of Trump’s closest allies in Congress, Senator Josh Hawley and Congressman Mike Kelly, introduced the Protect Election Integrity Act of 2020 right after the last election to address both of these alleged problems.
Parental rights laws that undermine national education standards
One of the most important but underdiscussed policy developments of the 21st century has been the steady abandonment by Republicans of their once-strong support for objective standards for public schools. George W. Bush’s signature No Child Left Behind legislation was one of the initiatives that produced the strong conservative backlash that in turn created the Trump-era Republican Party. And by the time the Common Core education standards initiative, originally spearheaded by Republican governors, reached fruition in the 2010s, it had already become anathema to most conservatives.
Part of this trend undoubtedly stemmed from growing Republican support for publicly funded private education (including the homeschooling option conservative Christians have increasingly embraced). But most recently, even those rank-and-file Republicans still utilizing public schools have become so hostile to teachers unions and “the education bureaucracy” that a partywide “parental rights” movement has mobilized both those who want public funds to go directly to parents to use for private and home schools and those who want to control what (and how) public schools teach.
Because the parental-rights movement treats state and local education authorities as inherently untrustworthy, there’s no particular reason its Republican allies should value states’ rights or local autonomy in education. Inevitably, if they are in a position to do so, it is very likely that Republicans in Congress and a future conservative administration will take parental rights national with legislation to keep states and localities from monopolizing public funds or from teaching material conservatives find objectionable (most obviously, on the subject of racism, but also on such conservative religious targets as sex education and evolution). GOP administrations for years have promoted federal school-voucher programs as a way to undermine public school funding; a broader attack on teachers unions and “bureaucrats” is inevitable.
Bans on state and local efforts to stop climate change
Perhaps the area where right-wing federal activism is most firmly established is via efforts to preempt state and local policies viewed as hostile by the GOP’s business constituencies, who invariably lobby their friends in Washington to protect them from blue-state regulators.
Federal anti-climate-change activism was on full display during the Trump administration, particularly in its wide-ranging war in the federal courts on California’s anti-pollution policies. Given the emergence of climate change as both an existential crisis for much of the GOP’s business base and a cultural issue for MAGA activists, you can count on future wars on blue-state climate initiatives from Washington when Republicans are fully in control.
Filibuster reform that further empowers the GOP
The feasibility of right-wing federal activism, of course, faces one of the same key obstacles Democrats are facing right now: the Senate filibuster.
Mitch McConnell has been adamant in his defense of the filibuster, which currently gives him the power to veto any Democratic initiatives that aren’t packed into a workaround like reconciliation. That may seem a guarantee against filibuster reform once the shoe is on the other foot, but I wouldn’t bet on it. It has been largely forgotten that Donald Trump’s original beef with McConnell was the Kentuckian’s refusal to kill the legislative filibuster in 2017 when Republicans were trying to enact an Obamacare repeal, among other Trump-backed conservative policies. Trump ranted about this McConnell decision endlessly, until the loss of the House by Republicans in the 2018 midterms made the issue largely moot.
Who knows if Mitch McConnell, who is 79 years old, will survive as Senate Republican leader until a hypothetical GOP trifecta in 2025. In any event, there is zero doubt that Trump’s sway over his party is continuing to grow, and given McConnell’s highly transactional (and cynical) approach to doing his job, he could easily flip-flop on the filibuster if Trump demanded it (much as he flipped-flopped on the permissibility of presidential-election-year Supreme Court confirmations when Trump needed one in 2020). Indeed, looking at the list of issues on which Republicans, and particularly Trump, may soon want sweeping federal action, the odds of the traditional filibuster surviving the next Republican trifecta are next to none.